United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED No. 20-10495 October 28, 2021 Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Phillip Matthew Sincleair,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19-CR-354-2

Before Davis, Haynes, and Oldham, Circuit Judges. W. Eugene Davis, Circuit Judge: Phillip Sincleair appeals the application of a two-point firearm sentencing enhancement to his offense level under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon. Because it is not clear whether the district court determined that Sincleair personally possessed the firearm or that one of Sincleair’s “unindicted co-conspirators” possessed it during the commission of an offense, we VACATE the sentence and REMAND for resentencing. Case: 20-10495 Document: 00516072752 Page: 2 Date Filed: 10/28/2021

No. 20-10495

I. BACKGROUND Phillip Sincleair pleaded guilty, without a plea agreement, to conspiring to possess a controlled substance with intent to distribute. As part of his plea proceedings, Sincleair signed a factual resume stipulating that, in 2017, he conspired with Jade Kuhn and Craig Wilbur to possess methamphetamine with intent to distribute it. A drug trafficking investigation of Kuhn, Wilbur, Cameron Primm, and Estevan Graciano revealed that Kuhn and Primm 1 supplied methamphetamine to Sincleair, who then distributed it to others. On May 18, 2017, Cooke County Sherriff’s Office (CCSO) police officers executed a search warrant at a residence owned by Chase Wood. At the residence, the officers found Sincleair, Wood, Mark Ilczyszyn, and Mahalia Markezinis, whom the presentence report (PSR) refers to as “unindicted co[-]conspirators,” and Amanda Blackman (Sincleair’s girlfriend), sitting on a couch smoking methamphetamine. The officers discovered less than two ounces (51.4 grams) of methamphetamine in Wood’s residence, although it is unclear where in the home they found the drugs. They also found a firearm on a table near the couch but did not determine who owned it. According to the PSR, the CCSO’s investigation revealed that “Sincleair was the methamphetamine [source of supply] for Ilczyszyn, who was the [source of supply] for Wood.” The PSR also stated that Sincleair,

1 None of these individuals were with Sincleair when he was arrested and the weapon at issue was present.

2 Case: 20-10495 Document: 00516072752 Page: 3 Date Filed: 10/28/2021

No. 20-10495

Ilczyszyn, and Blackman met at Wood’s residence on May 18, 2017 “so Ilczyszyn could distribute one ounce of methamphetamine to Wood.” 2 On December 9, 2019, Sincleair was charged by information for one count of conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846 (21 U.S.C. §§ 841(a)(1) and (b)(1)(C)), to which he pleaded guilty. 3 The probation office prepared a PSR, which held Sincleair accountable for co